PEOPLE v. BROWN (2004)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullin, J.), rendered March 19, 2001, convicting him of murder in the second degree, robbery in the first degree, assault in the second degree, attempted robbery in the first degree, and criminal possession of stolen property in the fourth degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

 The County Court properly determined after a hearing that the People established the voluntariness of the defendant's confession beyond a reasonable doubt.   On appeal, the defendant improperly relies on the defendant's trial testimony to challenge that determination.  “Where, as here, the defendant fails to move to reopen a suppression hearing, he or she may not rely upon the trial testimony to challenge the suppression ruling” (People v. Gold, 249 A.D.2d 414, 415, 670 N.Y.S.2d 789;  see People v. Gonzalez, 55 N.Y.2d 720, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306;  People v. Wells, 288 A.D.2d 408, 733 N.Y.S.2d 634).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.20[2] ).

 Contrary to the defendant's contention, the trial court did not err in granting the People's application to modify its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) to permit the prosecutor to elicit on cross-examination that his prior convictions involved firearms.   On direct examination, the defendant gave misleading testimony with respect to his prior use and familiarity with firearms, thereby opening the door to such questioning on cross-examination (see People v. Sims, 245 A.D.2d 316, 666 N.Y.S.2d 433;  People v. Thomas, 262 A.D.2d 213, 692 N.Y.S.2d 341).

The defendant's remaining contentions are without merit.